Bowers v. State ( 1979 )

Smith, Judge.

This case is before us upon our grant of appellant’s application for interlocutory review. Because probable cause was lacking for the arrest pursuant to which police seized the objectionable evidence from appellant, we must reverse the trial court’s denial of appellant’s motion to suppress.

Appellant was traveling by plane from Miami, Florida, to Columbus, Ohio, and his itinerary included a brief stopover at Hartsfield International Airport, for the purpose of catching a connecting flight. Appellant had about twenty minutes time to catch his departing flight, and he was thus quite rushed in proceeding to gate 44, the gate of his intended departure. On arriving there and exchanging his airline ticket for a boarding pass, appellant was accosted by B. A. Glover, a narcotics agent who identified himself as such. Glover took appellant’s pass from his possession and noted the name thereon, Peter Barnes. Then, as Glover testified: "I asked him if his name was Peter Barnes, which [sic] he replied, yes. I asked him where he was going and he replied he was going to Columbus, Ohio. I asked if he had any type of identification on him and he said that he did not. At that point in time, I informed him that I was conducting a narcotics investigation and asked him if he would walk with me down to the police precinct there in the terminal building.” Appellant expressed concern that he might be caused to miss his flight, but to no avail, and he accompanied Glover as directed. Upon their reaching the station, which was downstairs and some three hundred feet away from gate 44, appellant identified himself as Gary Bowers, and Glover told appellant he was under arrest for providing false identification to a police officer during an investigation. A search which followed uncovered the contraband.

Glover’s initial stop of appellant was based upon Glover’s own observation of appellant and upon information relayed to Glover by an investigator stationed at the Miami airport, who had witnessed appellant’s activities on departure from that city. Both agents noticed that appellant appeared nervous. The Miami investigator had observed that appellant paid cash for the ticket he purchased minutes before the departure of his flight, that he left a call-back number of an airport pay phone, and that he carried on whispered conversation with a "friend.” These observations were supposedly consistent with a "drug courier profile” prepared by the United States Drug Enforcement Administration.

The state has not contended at any time that probable cause existed to arrest appellant at the time that Glover initially accosted him. (In fact, such probable cause did not exist.¹) Rather, the state’s contention, in the trial court and on appeal, is that the initial detention was warranted as a Terry² stop, that the Terry stop continued from the waiting area of gate 44 to the police station downstairs, and that the conducted search was proper as incident to the arrest made upon Glover’s discovery, in the station, that appellant was using an alias. Assuming arguendo that the facts justified a Terry stop, nevertheless we cannot accept the state’s contention. Instead, the evidence demands the conclusion that the brief detention for questioning contemplated by Terry had been accomplished and appellant was under arrest when he, bereft of his boarding pass and of any means to depart, was told by a narcotics agent to accompany him to the police precinct. Probable cause to arrest undisputedly being absent at that time, the ensuing arrest and search were unlawful.

Argued March 12, 1979 Decided June 28, 1979 Rehearing denied July 30, 1979 Garland, Nuckolls & Radish, John A. Nuckolls, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Assistant District Attorneys, for appellee.

"A composite picture emerges of the 'Terry-type’ stop. It is a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification . . . and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.” Radowick v. State, 145 Ga. App. 231, 237 (244 SE2d 346) (1978). As in Radowick, the detention here overreached its purpose and thus became an illegal arrest. "An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be. The defendant may voluntarily submit to being considered under arrest without any actual touching or show of force, and the arrest is complete.” Clements v. State, 226 Ga. 66, 67 (172 SE2d 600) (1970). "Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests’ or investigatory detentions.’ ” Davis v. Mississippi, 394 U. S. 721, 726 (89 SC 1394, 22 LE2d 676) (1969).

Judgment reversed.

Quillian, P. J., and Birdsong, J., concur.

1 In Torres v. Puerto Rico, 47- USLW 4716 (U. S. Supreme Court Case No. 77-1609, decided June 18,1979), the facts were as follows. Torres, a Florida resident, arrived at the San Juan airport aboard a flight from Miami. A police officer’s suspicions were aroused when he observed that Torres seemed nervous and kept looking at an armed, uniformed officer stationed nearby in the airport. There was, however, no reason to suspect that Torres was carrying contraband. When Torres claimed his baggage, the officer stopped him, identified himself as an agent and took Torres to the airport police office, where an ensuing search revealed contraband. Torres was then arrested, and the Supreme Court of Puerto Rico affirmed his conviction for possession of marijuana. The Commonwealth of Puerto Rico contended that the search was legal based upon Public Law 22, § 1, P. R. Laws Ann., Tit. 25, § 1051 (supp. 1977), which provides: "The Police of Puerto Rico is hereby empowered and authorized to inspect the luggage, packages, bundles, and bags of passengers and crew who land in the airports and piers of Puerto Rico arriving from the United States; to examine cargo brought into the country, and to detain, question, and search those persons whom the Police have grounds to suspect of illegally carrying firearms, explosives, narcotics, depressants or stimulants or similar substances.” Reversing Torres’ conviction in agreement with his contention that his Fourth Amendment rights had been violated, the Supreme Court stated: "The search of appellant’s baggage pursuant to Public Law 22 did not satisfy the requirements of the Fourth Amendment as we heretofore have construed it. First, the grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests. Delaware v. Prouse, 440 U. S. —, (1979). The governmental interests to be served in the detection or prevention of crime are subject to traditional standards of probable cause to believe that incriminating evidence will be found. Yet Public Law 22 does not require, and the officers who made the search challenged here did not have probable cause for such belief.

"Second, a warrant is normally a prerequisite to a search unless exigent circumstances make compliance with this requirement impossible. Mincey v. Arizona, 435 U. S. 385, 393-394 (1978). Yet, Public Law 22 requires no warrant and none was obtained before appellant’s bags were searched.” Torres, supra, p. 4718.

2 Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).